In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-23-00021-CV __________________
IN THE INTEREST OF T.E., J.E., AND J.E.
________________________________________________________________
On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 21-09-13615-CV __________________________________________________________________
MEMORANDUM OPINION
Mother appeals from an order terminating her parental rights to her three
children—a four-year-old son J.E., a six-year-old daughter J.E., and a ten-year-old
son T.E.1 The trial court found, by clear and convincing evidence, that statutory
grounds existed for termination of Mother’s parental rights and that termination of
her parental rights would be in the best interest of the children. 2 See Tex. Fam. Code
Ann. § 161.001(b)(1)(D), (E), (2). In a single issue, Mother argues that the trial court
1 To protect the identity of the children, we use pseudonyms to refer to the parents and initials to refer to the children. See Tex. R. App. P. 9.8(b)(2). 2 The Order of Termination also terminated the children’s fathers’ parental rights, but the fathers are not parties to this appeal. 1 lost jurisdiction over the case because it failed to commence trial on the merits by
the deadline required by section 263.401 of the Family Code. As explained below,
we affirm.
Background
The Department of Family and Protective Services (“the Department”) filed
an Original Petition for Protection of a Child, for Conservatorship, and for
Termination in a Suit Affecting the Parent-Child Relationship on September 30,
2021. An Affidavit in Support of Removal by a Department representative was filed
at the same time, and the affidavit stated that the Department had received a report
of neglectful supervision of the children and methamphetamine manufacturing in the
home. The Department was named temporary managing conservator of all three
children by an order signed on October 1, 2021.
On September 30, 2022, the case was called for a bench trial. The trial court
stated that the Court Appointed Special Advocate (“CASA”) was present. Mother’s
counsel told the court that Mother was “finishing up her 30 days” in a treatment
facility and could not get transportation to trial. The trial court stated, “due to some
scheduling issues and other issues, everyone has agreed to commence the trial today
and then come back to resume to its conclusion, correct?” On the record, the attorney
for the Department, the attorney for Mother, as well as the attorneys for Father and
for the children all agreed.
2 A witness for the Department was sworn in and then testified that she was an
investigator for Child Protective Services and that she was assigned to this case. She
stated that when she investigated this case, she had concerns that the children’s basic
needs were not being met.
At that point, the trial court stated, “I think I’m just going to stop you since
we don’t have the parents here[.]” The trial court then stated that it would recess and
resume on December 8. The bench trial resumed on December 8, 2022, and it
concluded on December 16, 2022. After hearing testimony from the witnesses and
receiving evidence, the trial court found by clear and convincing evidence that
statutory grounds existed for termination of Mother’s and the fathers’ parental rights
and that termination of the parents’ parental rights was in the children’s best interest.
The trial court also appointed the Department as permanent managing conservator
of all three children. The court signed the final Order of Termination on December
30, 2022, and Mother filed her notice of appeal on January 24, 2023.
Issue
In a single issue on appeal, Mother argues that the trial did not commence by
the deadline required under section 263.401 of the Family Code. See Tex. Fam. Code
Ann. § 263.401. According to Mother, the trial did not start within one year of the
trial court rendering a temporary order appointing the Department as the temporary
managing conservator, the trial court lost jurisdiction over the case, and the final
3 Order of Termination is void. Appellant argues the trial court’s proceeding on
September 30, 2022, did not constitute commencement on the merits because “no
announcements were made, no pretrial matters were considered, and not a single
piece of evidence was offered,” citing In the Interest of D.S., 455 S.W.3d 750 (Tex.
App.—Amarillo 2015, no pet.). Appellant argues that because the trial court failed
to comply with the requirements of section 263.401 of the Family Code, the trial
court lost jurisdiction over the case, and this Court should reverse the trial court’s
Order of Termination and remand for a new trial.
Analysis
Issues that implicate a court’s subject matter jurisdiction raise questions of
law that we review under a de novo standard. See In re H.S., 550 S.W.3d 151, 155
(Tex. 2018). The relevant portion of section 263.401 of the Texas Family Code
states,
[] Unless the court has commenced the trial on the merits or granted an extension under Subsection (b) or (b-1), on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator, the court’s jurisdiction over the suit affecting the parent-child relationship filed by the department that requests termination of the parent-child relationship or requests that the department be named conservator of the child is terminated and the suit is automatically dismissed without a court order. Not later than the 60th day before the day the suit is automatically dismissed, the court shall notify all parties to the suit of the automatic dismissal date.
4 Tex. Fam. Code Ann. § 263.401(a). In other words, under the statute, a trial court
automatically loses jurisdiction in a termination of parental rights case brought by
the Department if the trial court does not commence a trial on the merits or grant an
extension by the statutory dismissal deadline. See id.; In re J.R.T., No. 09-21-00361-
CV, 2022 Tex. App. LEXIS 1781, at *8 (Tex. App.—Beaumont Mar. 17, 2022, no
pet.) (mem. op.); In re N.F., No. 09-19-00435-CV, 2020 Tex. App. LEXIS 3650, at
*47 (Tex. App.—Beaumont Apr. 30, 2020, pet. denied) (mem. op.); In re K.B., No.
09-19-00239-CV, 2019 Tex. App. LEXIS 10570, at *8 (Tex. App.—Beaumont Dec.
5, 2019, no pet.) (mem. op.).
Appellant cites to In the Interest of D.S., 455 S.W.3d 750 (Tex. App.—
Amarillo 2015, no pet.) and argues that the “minimal requirements for
commencement” include the parties making announcements and the trial court
ascertaining whether there are any pretrial matters. In D.S., no witnesses were sworn
or gave testimony before the statutory automatic dismissal date, and the Amarillo
Court of Appeals concluded that “a putative call of the case and an immediate
recess” was not a commencement of trial on the merits within the meaning of the
statute. See id. at 753.
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In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-23-00021-CV __________________
IN THE INTEREST OF T.E., J.E., AND J.E.
________________________________________________________________
On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 21-09-13615-CV __________________________________________________________________
MEMORANDUM OPINION
Mother appeals from an order terminating her parental rights to her three
children—a four-year-old son J.E., a six-year-old daughter J.E., and a ten-year-old
son T.E.1 The trial court found, by clear and convincing evidence, that statutory
grounds existed for termination of Mother’s parental rights and that termination of
her parental rights would be in the best interest of the children. 2 See Tex. Fam. Code
Ann. § 161.001(b)(1)(D), (E), (2). In a single issue, Mother argues that the trial court
1 To protect the identity of the children, we use pseudonyms to refer to the parents and initials to refer to the children. See Tex. R. App. P. 9.8(b)(2). 2 The Order of Termination also terminated the children’s fathers’ parental rights, but the fathers are not parties to this appeal. 1 lost jurisdiction over the case because it failed to commence trial on the merits by
the deadline required by section 263.401 of the Family Code. As explained below,
we affirm.
Background
The Department of Family and Protective Services (“the Department”) filed
an Original Petition for Protection of a Child, for Conservatorship, and for
Termination in a Suit Affecting the Parent-Child Relationship on September 30,
2021. An Affidavit in Support of Removal by a Department representative was filed
at the same time, and the affidavit stated that the Department had received a report
of neglectful supervision of the children and methamphetamine manufacturing in the
home. The Department was named temporary managing conservator of all three
children by an order signed on October 1, 2021.
On September 30, 2022, the case was called for a bench trial. The trial court
stated that the Court Appointed Special Advocate (“CASA”) was present. Mother’s
counsel told the court that Mother was “finishing up her 30 days” in a treatment
facility and could not get transportation to trial. The trial court stated, “due to some
scheduling issues and other issues, everyone has agreed to commence the trial today
and then come back to resume to its conclusion, correct?” On the record, the attorney
for the Department, the attorney for Mother, as well as the attorneys for Father and
for the children all agreed.
2 A witness for the Department was sworn in and then testified that she was an
investigator for Child Protective Services and that she was assigned to this case. She
stated that when she investigated this case, she had concerns that the children’s basic
needs were not being met.
At that point, the trial court stated, “I think I’m just going to stop you since
we don’t have the parents here[.]” The trial court then stated that it would recess and
resume on December 8. The bench trial resumed on December 8, 2022, and it
concluded on December 16, 2022. After hearing testimony from the witnesses and
receiving evidence, the trial court found by clear and convincing evidence that
statutory grounds existed for termination of Mother’s and the fathers’ parental rights
and that termination of the parents’ parental rights was in the children’s best interest.
The trial court also appointed the Department as permanent managing conservator
of all three children. The court signed the final Order of Termination on December
30, 2022, and Mother filed her notice of appeal on January 24, 2023.
Issue
In a single issue on appeal, Mother argues that the trial did not commence by
the deadline required under section 263.401 of the Family Code. See Tex. Fam. Code
Ann. § 263.401. According to Mother, the trial did not start within one year of the
trial court rendering a temporary order appointing the Department as the temporary
managing conservator, the trial court lost jurisdiction over the case, and the final
3 Order of Termination is void. Appellant argues the trial court’s proceeding on
September 30, 2022, did not constitute commencement on the merits because “no
announcements were made, no pretrial matters were considered, and not a single
piece of evidence was offered,” citing In the Interest of D.S., 455 S.W.3d 750 (Tex.
App.—Amarillo 2015, no pet.). Appellant argues that because the trial court failed
to comply with the requirements of section 263.401 of the Family Code, the trial
court lost jurisdiction over the case, and this Court should reverse the trial court’s
Order of Termination and remand for a new trial.
Analysis
Issues that implicate a court’s subject matter jurisdiction raise questions of
law that we review under a de novo standard. See In re H.S., 550 S.W.3d 151, 155
(Tex. 2018). The relevant portion of section 263.401 of the Texas Family Code
states,
[] Unless the court has commenced the trial on the merits or granted an extension under Subsection (b) or (b-1), on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator, the court’s jurisdiction over the suit affecting the parent-child relationship filed by the department that requests termination of the parent-child relationship or requests that the department be named conservator of the child is terminated and the suit is automatically dismissed without a court order. Not later than the 60th day before the day the suit is automatically dismissed, the court shall notify all parties to the suit of the automatic dismissal date.
4 Tex. Fam. Code Ann. § 263.401(a). In other words, under the statute, a trial court
automatically loses jurisdiction in a termination of parental rights case brought by
the Department if the trial court does not commence a trial on the merits or grant an
extension by the statutory dismissal deadline. See id.; In re J.R.T., No. 09-21-00361-
CV, 2022 Tex. App. LEXIS 1781, at *8 (Tex. App.—Beaumont Mar. 17, 2022, no
pet.) (mem. op.); In re N.F., No. 09-19-00435-CV, 2020 Tex. App. LEXIS 3650, at
*47 (Tex. App.—Beaumont Apr. 30, 2020, pet. denied) (mem. op.); In re K.B., No.
09-19-00239-CV, 2019 Tex. App. LEXIS 10570, at *8 (Tex. App.—Beaumont Dec.
5, 2019, no pet.) (mem. op.).
Appellant cites to In the Interest of D.S., 455 S.W.3d 750 (Tex. App.—
Amarillo 2015, no pet.) and argues that the “minimal requirements for
commencement” include the parties making announcements and the trial court
ascertaining whether there are any pretrial matters. In D.S., no witnesses were sworn
or gave testimony before the statutory automatic dismissal date, and the Amarillo
Court of Appeals concluded that “a putative call of the case and an immediate
recess” was not a commencement of trial on the merits within the meaning of the
statute. See id. at 753. Here, Appellant contends no announcements were made, no
pretrial matters were decided, and “not a piece of evidence was offered.”
We disagree with Appellant’s characterization of the record in this case and
find the facts in this case distinguishable from the facts in D.S. The record before us
5 shows the trial court called the case for trial, and the attorneys for the parties
answered in agreement on the record that “due to some scheduling issues and other
issues, everyone has agreed to commence the trial today and then come back to
resume to its conclusion.” Mother’s attorney expressly agreed on the record. Then,
the Department called its first witness, and some testimony was offered and received
before the case was then recessed and later resumed on December 8th. So, the facts
here are distinguishable from D.S.
We find the facts here more like the facts in In the Interest of R.F. Jr., No. 04-
17-00582-CV, 2018 Tex. App. LEXIS 1849 (Tex. App.—San Antonio Mar. 14,
2018, no pet.) (mem. op.), where the trial court addressed pretrial motions, and the
Department called a witness who testified briefly before the trial court recessed. Id.
at **3-4. The San Antonio Court of Appeals concluded that the record established
that the trial court timely commenced trial on the merits for purposes of section
263.401(a). See id. at *4; see also In re H.B.C., No. 05-19-00907-CV, 2020 Tex.
App. LEXIS 669, at *30 (Tex. App.—Dallas Jan. 23, 2020, no pet.) (mem. op.) (the
trial court called the case, counsel for all parties announced they were ready, pretrial
motions were addressed, and a witness was sworn in and gave brief testimony prior
to recess, and the appellate court concluded that such a proceeding constituted
commencement of trial on the merits and complied with section 263.401(a)); In re
R.J., 568 S.W.3d 734, 747 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (witnesses
6 were sworn, the parties announced they were ready to proceed, and a witness for the
Department “briefly testified” before the trial court recessed, and the appellate court
concluded that such a proceeding was sufficient to establish that trial on the merits
had commenced that day).
Our Court addressed a similar situation in In the Interest of N.F., where the
trial court called the case for trial before the statutory automatic dismissal date, the
parties made their announcements, the trial court heard the pretrial motions, and the
State called its first witness who was sworn in and testified. See 2020 Tex. App.
LEXIS 3650, at *50. The order of termination stated the dates on which the trial
court heard the case, which were dates before the statutory deadline. See id. In N.F.,
this Court concluded that trial on the merits commenced by the statutory deadline
imposed by section 263.401(a). See id. (citing Tex. Fam. Code Ann. § 263.401(a);
In re H.B.C., 2020 Tex. App. LEXIS 669, at *30; In re R.J., 568 S.W.3d at 747; In
re R.F. Jr., 2018 Tex. App. LEXIS 1849, at **3-4).
In this case, the trial court entered a temporary order appointing the
Department as temporary managing conservator of all three children on October 1,
2022. Therefore, the automatic dismissal date was the first Monday following the
first anniversary date, or October 1, 2022. See In re F.S., No. 09-22-00114-CV, 2022
Tex. App. LEXIS 7106, at *1 (Tex. App.—Beaumont Sept. 22, 2022, pet. filed)
7 (citing Tex. Fam. Code Ann. § 263.401(a)); In re J.R.T., 2022 Tex. App. LEXIS
1781, at *9.
The trial court called the case for trial on September 30, 2022, and the parties
announced their presence. The trial court stated that “due to some scheduling issues
and other issues, everyone has agreed to commence the trial today and then come
back to resume to its conclusion,” and all the parties agreed. A witness for the
Department was sworn in and gave brief testimony, and the trial court stated, “I think
I’m just going to stop you since we don’t have the parents here[.]” The trial court
recessed the proceeding and set December 8, 2022, as the date on which trial would
resume.
The trial resumed on December 8, 2022, and at that time the trial court stated,
“we started this trial actually on September the 30th.” The trial concluded on
December 16, 2022. The final Order of Termination states, “[o]n September 30,
2022, December 16 [sic], 2022 and December 16, 2022, the Court heard and
rendered this case.”
Conclusion
Based on the entire record in this case and applicable law, we conclude that
trial on the merits commenced on September 30, 2022, and that the trial commenced
before the statutory automatic dismissal date imposed by section 263.401(a). See
Tex. Fam. Code Ann. § 263.401(a). Accordingly, the trial court did not lose
8 jurisdiction over the case, and we overrule Appellant’s sole issue on appeal. See In
re N.F., 2020 Tex. App. LEXIS 3650, at *50.
Having overruled Appellant’s issue, we affirm the trial court’s Order of
Termination.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on May 22, 2023 Opinion Delivered June 1, 2023
Before Golemon, C.J., Johnson and Wright, JJ.